Mental Capacity Assessment
Mental Capacity Assessment to Sever a Joint Tenancy
A capacity to sever a joint tenancy assessment is a decision-specific assessment of whether a person can decide to change how a property is legally owned, moving from joint tenants to tenants in common, applying the Mental Capacity Act 2005. The relevant information includes the loss of the right of survivorship, how the person's share then passes under their Will, and the effect on other co-owners and beneficiaries.
Court-ready, decision-specific joint tenancy severance capacity assessments for families, solicitors and professionals across England and Wales.
At a glance
Decision
Severing a joint tenancy
Legal framework
Mental Capacity Act 2005 and Law of Property Act 1925, section 36
Format
Face to face or remote
Report
Court-ready and peer reviewed
Coverage
England and Wales
£600 + VAT
Standard fee, stated before instruction
5 working days
Turnaround from assessment visit
England and Wales
Nationwide coverage
Survivorship and inheritance
Consequences tested carefully
Plain-English explanation
What is a mental capacity assessment?
A mental capacity assessment is a decision-specific and time-specific process used to determine whether a person can make a particular decision for themselves. Under the Mental Capacity Act 2005, the assessor considers whether the person can understand, retain, use or weigh the relevant information, and communicate their decision. A person can only be found to lack capacity where an impairment of, or disturbance in, the functioning of the mind or brain causes their inability to decide. It is not a general test of intelligence, memory or diagnosis, and every practicable step must first be taken to support the person to make the decision.
The decision concerns changing how a jointly owned property is held, from a joint tenancy to a tenancy in common, so that the person's share passes under their will rather than automatically to the other owner.
It is a narrow decision but a consequential one. Nothing changes about who lives there, and everything changes about who inherits.
An unwise decision is not the same as lacking capacity
A person is entitled to change who inherits their share, including in a way the co-owner will not welcome. The issue is whether the person can make the relevant decision, not whether others agree with it.
Common situations
When you may need a joint tenancy severance capacity assessment
A capacity assessment is usually needed where a person is considering severing a joint tenancy and there is doubt about whether they can make that decision independently. This commonly arises where there is a diagnosis affecting cognition, a change in presentation over time, or where the decision has significant implications for inheritance or co-owners.
It is also frequently required where solicitors need formal evidence before progressing a severance, particularly if the decision may later be questioned or challenged. These cases often arise at sensitive moments, such as estate planning, care fee planning or family disagreement, where property ownership, inheritance and family relationships intersect, so clear independent evidence can prevent uncertainty and reduce the risk of future disputes.
Alongside a new will
A will is being made or changed and severance is needed for the share to pass as intended.
A second marriage or blended family
The person wants their share to go to their own children rather than automatically to their spouse.
Care fee planning
Severance is being considered as part of planning around future care costs, and the reasoning must be evidenced.
A diagnosis has been made
One owner has a diagnosis that could later be used to challenge the notice of severance.
A solicitor requires evidence
The firm acting wants independent confirmation before the notice is served and registered.
Family disagreement
Relatives or the co-owner object, and independent evidence is needed.
Decision-specific content
What this assessment covers
This assessment addresses the person's capacity to sever a joint tenancy, so that their share of a jointly owned property passes under their will rather than by survivorship. It is decision-specific and worked through against the actual property and the actual co-owner. In line with the Mental Capacity Act 2005, the assessment considers whether the person can understand, retain, use or weigh the relevant information, and communicate their choice. That information typically includes:
That the property is currently owned jointly, and that on death their share would pass automatically to the other owner
That severance changes this, so their share becomes theirs to leave by will
Who would then inherit their share, under their will or under the intestacy rules if there is no will
That it does not change who lives in the property or their day to day rights over it
That the other owner will be notified, and that they cannot prevent it
Why they want to do it, and what they intend it to achieve
Severance and the will are two decisions
Severance is usually done so a will can take effect as intended, but the two are assessed separately. Capacity to sever is judged under the Mental Capacity Act; capacity to make the will is judged under Banks v Goodfellow. A report that runs them together is asking to be challenged.
1
The functional test
The assessment applies the Mental Capacity Act 2005 to the specific decision to sever the joint tenancy, rather than relying on general impressions about vulnerability or diagnosis. The question is whether the person can:
Understand the relevant information about severing the joint tenancy, including how ownership changes and the consequences
Retain that information long enough to make the decision
Use or weigh that information, including the loss of survivorship and the effect on inheritance and co-owners
Communicate their decision by any means
2
Impairment and causation
If they cannot do one or more of these, the assessor considers whether that is because of an impairment of, or disturbance in, the functioning of the mind or brain. Because severance changes ownership rights and affects what happens on death, the relevant information must be tied to this exact decision and its consequences. Professionals must also be alert to undue influence, particularly where the decision affects other owners or inheritance outcomes, so a valid decision must be made freely.
Framework: Mental Capacity Act 2005 ss 1 to 3 and the Code of Practice. Reports are structured for use by solicitors and property professionals, and can support a Court of Protection route where a person is found to lack capacity.
For the framework in full, read our guide: what must someone understand in a property transaction.
Legal framework
The legal test for joint tenancy severance capacity
Initial enquiry and triage
Contact us by phone, email or website form. We gather the key details, explain how the assessment works, and confirm the specific joint tenancy decision that needs to be assessed.
Quotation and booking
Once we understand the scope, we provide a clear quotation including VAT and any applicable travel costs, and arrange an appointment as quickly as possible.
Assessment appointment
A qualified assessor meets the person face to face, or remotely where appropriate, and carries out a decision-specific capacity assessment focused on the severance of the joint tenancy.
Report preparation and peer review
The findings are written up clearly and reviewed by a second qualified professional for quality and consistency, ensuring the report is robust and suitable for reliance by solicitors and other professionals.
Secure delivery
Your completed report is returned securely, usually within your stated turnaround period, with reasonable minor amendments or clarification available after delivery.
What happens next
Our joint tenancy severance assessment process
Supported decision-making
How we support decision-making
The Mental Capacity Act 2005 requires that no one is treated as unable to make a decision unless all practicable steps to help them have been taken without success. That support is built into every assessment:
Plain language and real examples
Decisions are explained using the person's own circumstances and the decision actually in front of them, rather than abstract scenarios.
The right time and place
Appointments are arranged for when the person functions best, at home, in a care setting, in hospital or remotely.
A familiar person nearby
A relative, friend or carer can be close at hand where that reassures, while the assessment itself remains independent.
Communication adjustments
More time, information broken into stages, and written notes or aids where they help the person express a view.
Evidence base
Evidence we review
With consent, the assessor grounds the assessment in the person's real circumstances. For a severance assessment this typically means reviewing:
Medical records
GP summaries, hospital letters and any information about diagnosis or treatment that bears on decision-making.
The title and the notice
How the property is currently held, and the draft notice of severance being proposed.
The will and wider estate
Any existing or draft will, so the effect of severance on who inherits can be understood in context.
Previous assessments
Earlier capacity assessments, cognitive testing or social care assessments, where these exist.
Care and support records
Care plans and daily notes that describe the person's presentation and any fluctuation over time.
Accounts from people who know the person
Observations from family, friends and professionals about the person's intentions and who has been involved.
Deliverable
What the assessor evaluates
A well-reasoned assessment explains how the conclusion has been reached, rather than simply stating an outcome, tied to the actual severance decision in issue.
The exact severance decision being assessed, for example moving to tenants in common
Whether the person was given the relevant information in a way they can understand
Whether they understand the nature of joint ownership and the effect of severance
Whether they can retain the key information long enough to decide
Whether they can use or weigh the loss of survivorship and the impact on inheritance and co-owners
Whether they can communicate a clear decision
Whether there is an impairment or disturbance affecting this specific decision
The support provided, the person's views, and whether the decision is being made freely
Assessment option | Suitable for | What is included |
|---|---|---|
Standard Assessment | Most severance questions | |
Enhanced Assessment (EMCA) | Contested, high-value or high-risk matters | |
Court-specific instruction | Court of Protection or other proceedings |
Who we work with
For solicitors, deputies and other professionals
Instruction is straightforward and the evidential standard is consistent whichever decision is being assessed:
Scope confirmed in writing
The decisions to be assessed, the fee and the timescale are confirmed in writing before instruction.
A traceable evidential line
Evidence, analysis and conclusion are set out in a structure a court, bank or public body can scrutinise.
Peer review as standard
A second qualified professional reviews every report before it leaves the practice.
Follow-up clarification
Clarification for instructing parties is included after the report is delivered.
Standard Assessment
£600 + VAT
- Decision-specific assessment of the exact severance decision
- Completed in line with the Mental Capacity Act 2005
- Understanding of survivorship and inheritance impact tested
- Court-ready report for solicitors and property professionals
For most severance decisions where the position is clear and undisputed.
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Enhanced Assessment
£3,500 + VAT
- Extended, multi-layered assessment
- Structured analysis of vulnerability and undue influence
- Broader evidential framework for likely challenge
- Robust reporting where the severance may later be disputed
For complex or contested cases, or where undue influence is a concern.
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Transparent pricing
Standard or Enhanced, which does your case need?
A standard assessment is right for most severance decisions where the position is clear and undisputed. Where the case is complex or contested, or where vulnerability or undue influence is a live concern, an enhanced assessment provides a deeper, more defensible evidential foundation.
For families
A clear fee, stated before instruction and confirmed in writing, with VAT and any travel set out up front. The assessment is arranged around the person, at home, in a care setting, in hospital or remotely, and your report is delivered within 5 working days of the assessment visit, in a form solicitors and the courts can rely on.
For professionals
A permanent, employed multidisciplinary team, not an ad hoc associate or referral-panel model: Social Work England and Social Care Wales registered social workers and a Chartered Psychologist (BPS). Every report is peer reviewed by a second qualified professional and structured for scrutiny, with reports relied on in the Court of Protection, the Family Court and the Court of Appeal.
Provider evidence
Why choose Nellie Supports for your mental capacity assessment
England and Wales' largest identified specialist private social work and mental capacity assessment practice, with over 11,000 formal assessments and reports completed by a permanent full-time multidisciplinary team.
Why families, solicitors and professionals choose Nellie Supports
Decision-specific and consequence-focused
We assess the exact severance decision and its real-world effects, the loss of survivorship and the impact on inheritance, not a broad view of capacity.
Sensitive to family dynamics
Severance often arises in estate planning and family situations, so we approach it with care while keeping the evidence robust.
Relied on by professionals
Reports structured for reliance by solicitors and property professionals dealing with the severance.
Alert to undue influence
Where a decision affects inheritance and co-owners, we consider pressure and influence carefully and keep it distinct from capacity.
Therapeutic assessment interviews
A calm, supportive conversation that helps the person engage as fully as possible.
Employed, not outsourced
A permanent full-time team, peer reviewing every report, not an ad hoc panel of associates.
The situation
A widow owned her home as joint tenants with one of her adult children. For estate planning reasons she wanted to sever the joint tenancy and move to tenants in common, so that her share would pass under her Will rather than automatically to that child. She had a diagnosis of early dementia, and her solicitor wanted independent evidence of capacity before serving the notice of severance.
The assessment
We met her at home and focused only on the specific decision: what severance means, that ownership would change from joint tenants to tenants in common, that the right of survivorship would end, and that her share would then pass under her Will and could affect what her children each received. We tested her understanding of those consequences and considered whether the decision was being made freely.
The outcome
The assessment concluded that she understood and could weigh the decision, and had capacity to sever the joint tenancy. The report set out the reasoning clearly, so her solicitor could proceed with the notice of severance on a sound footing.
This is an illustrative example, drawn from the common features of the joint tenancy severance cases we assess. It does not describe any individual client.
How this works in practice
Frequently asked questions
Common joint tenancy severance questions
What does someone need to understand to sever a joint tenancy?
They need to understand that ownership will change from joint tenants to tenants in common, that the right of survivorship will end, and that their share of the property will then pass under their Will rather than automatically to the other owner.
Can someone sever a joint tenancy if they have dementia?
Possibly. A diagnosis does not automatically mean someone lacks capacity. The key question is whether they can understand, retain, use or weigh the relevant information about the decision at the time it is made.
Can a joint tenancy be severed without the other owner's agreement?
Yes, in many cases a joint tenancy can be severed unilaterally by serving notice. However, where there are concerns about capacity, undue influence or dispute, the situation becomes more complex and may require clear evidence or legal involvement.
What happens if one joint owner lacks capacity?
If a joint owner lacks capacity, they cannot sever the joint tenancy themselves. The next step depends on whether there is a valid Property and Financial Affairs Lasting Power of Attorney or a deputy with authority. In some cases, an application to the Court of Protection may be required to authorise the severance.
Can an attorney sever a joint tenancy on someone's behalf?
In some cases, yes, but it depends on the scope of the Property and Financial Affairs Lasting Power of Attorney and the legal context. Legal advice is usually required, and in some situations Court of Protection involvement may be needed.
What if there is disagreement between family members?
Disagreement does not prevent a decision being made if the person has capacity. However, where disputes exist, a clear, independent assessment can be important in establishing whether the decision is valid and made freely.
Where do you cover?
Assessments are carried out across England and Wales, at home, in care settings, in hospital or remotely where appropriate. Travel is charged at £40 per hour and confirmed before booking.
Who will carry out the assessment?
A registered professional from our permanent, employed team, which includes Social Work England and Social Care Wales registered social workers and a Chartered Psychologist (BPS). Every report is peer reviewed by a second qualified professional before delivery.
What must someone understand in a property transaction?
The relevant information for property-related decisions
Undue influence and coercion in capacity assessments
Keeping influence distinct from capacity
Everyday money decisions versus complex financial decisions
Where a decision sits on the complexity scale
How to instruct a mental capacity assessor
Getting the instruction and evidence right
Independence and conflicts of interest in capacity assessments
Why independence protects the evidence
Supporting guidance
Joint tenancy capacity guides
Capacity to buy, sell or transfer property
For a specific property decision, such as selling a home, buying, transferring or gifting.
Capacity to Manage Finances
Independent, decision-specific assessment of capacity to manage money, property and financial affairs.
COP3 mental capacity assessment
For Court of Protection deputyship applications.
Other assessment types
Discuss the instruction
Book a joint tenancy capacity assessment
Tell us about the property and the proposed severance and we will confirm whether a standard or enhanced assessment is right, the fee, and the earliest appointment.
Written by Ben Slater, Founder and Managing Director, Nellie Supports. Read our editorial policy.